Rule 113 Role and Authority of Kokua Kanawai

COMMENTARY:

The term "Kokua Kanawai" (Helper in the Law) was retained in lieu of the term "visitor" which is used in the Uniform Act. The Kokua Kanawai is appointed to serve as an extension of the court for independent review, analysis, and report. As such, the Kokua Kanawai is not an advocate for or against the rights of the individual and is limited in role to responding to the petition for protective proceeding. The Kokua Kanawai, without prior court order, has no authority to initiate actions on behalf of the respondent. Rather, the court could appoint an attorney for the respondent.

Given this relationship and role, the Kokua Kanawai does not represent the respondent, and, therefore, service upon the Kokua Kanawai does not constitute service on the respondent. Rule 104 requires that notice be served on a respondent or attorney even when a Kokua Kanawai is appointed and served.

To enable the Kokua Kanawai to fully review the pertinent facts and make a fair recommendation to the court, this rule gives the Kokua Kanawai authority to review the medical records of the protected person. Hawai‘i Rules of Evidence 504(c) and 504.1(c), relating to the physician-patient and psychologist-client privileges, provide that the conservator or guardian for the patient or client may claim the privilege. However, Hawai‘i Rules of Evidence 504(d)(3) and 504.1(d)(3) provide that there is no privilege as to a communication relevant to the physical, mental, or emotional condition of the patient or client in which the patient or client relies upon the condition as an element of the person's position with respect to the proceeding. Thus, where the Kokua Kanawai is acting on behalf of the court, that person may and must have access to the medical and psychological records of the respondent to be able to fully advise the court, but may not thereby further reveal any privileged information.